Believe it or not, Republic Act (RA) 9369, or the Automated Election System (AES) Law, is the most neglected election-related act by the Commission on Elections (Comelec). Section 37 of RA 9369 stipulates that the Comelec shall promulgate the implementing rules and regulation (IRR) for the implementation and enforcement of the AES Law. From the enactment of the original version of AES Law or RA 8436 in 1997, to its amendment to become RA 9369 in 2007, and even now, Comelec has not prepared its IRR!
Basic questions were raised by AES Watch: What could be the problem that prevents Comelec from promulgating the IRR? Don’t they have the capacity to do it when in fact Comelec has lots of lawyers? Is there a problem with the Comelec’s leadership or do they just simply consider drafting the IRR not important? How did Comelec interpret the provisions of RA 9369 (e.g., digital signature, source code review, voter’s receipt, etc.) in the past three (3) National and Local Elections (NLEs) without IRR? How did the Comelec assess properly the performance of the people and companies involved in implementing the AES without the IRR?
Comelec has been receiving taxpayers’ money worth billions of pesos but neither a single cent nor one minute of their time was allotted to craft the IRR. They could even outsource or tap professionals who can help them draft the IRR! AES Watch could only surmise that they were just quite busy maintaining Smartmatic as their technology and service provider of the past National and Local Elections (NLEs) without due consideration of the importance of AES transparency.
In the Joint Congressional Oversight Committee (JCOC) on AES on September 17, 2015, Ms. Evi Jimenez of CenPEG/AES Watch said, “…dahil po walang IRR ang RA9369, ang mungkahi po naming ay siguro manggagaling din dito sa Committee ay gawin na po, i-fast-track na ang IRR dahil from time to time, mula noong 2010 ay palaging naglalabas ng iba’t-ibang Comelec rules. Nag-iiba po iyan kaya subject to the decisions ng mga bagong set ng commissioners. Isa po iyan sa nais namin at matagal na naming sisasabi, isang constructive proposal iyan noon pa na hanggang ngayon hindi pa nagagawa.”(“…your honors, because RA9369 has no IRR, our suggestion, honored sirs, is perhaps for this Committee to make that suggestion its own, order that the IRR be fast-tracked, sirs, because from time to time since 2010 always different, varying, Comelec rules are issued. These rules take different shapes, so they are subject to decisions of new set of commissioners. That, sirs, is one of the recommendations we have been making for a long time, it’s a constructive proposal made long ago but has not been carried out until now.”)
At that time, the JCOC was then headed by Sen. Koko Pimentel, who is now the Senate President under the administration of President Duterte.
After nineteen (19) years, the new Comelec head, Chairman Andy Bautista, addressed the IRR issue by replying to Jimenez, “…why don’t you provide us with the draft IRR which the Commission can now consider?” Jimenez responded, “…Bukod sa hindi namin ito trabaho at dapat trabaho ng gobyerno, ay magtulungan po tayo (Notwithstanding the fact that this is not our job and should be the job of the government, sirs, let’s help each other.) …In fact, we have presented a lot of amendments—proposed amendments and proposals pero gawin po ng gobyerno iyong dapat gawin niya. (but the government should do what it should do.)”
An act of “magtulungan” or “bayanihan”is what is being called for, as stated by Jimenez. Being the lead agency, Comelec therefore may initiate the “bayanihan” to finally draft the elusive IRR and promulgate the same by calling not only AES Watch to participate but also other stakeholders to help. Let’s not forget that the drafting of bills leading to the enactment of RA9369 was a result of “bayanihan.”
Inattention to the required promulgation of the said IRR is negligence. If General Instructions (GI) is what Comelec prefers, better yet amend the law and remove the word “promulgation” and state in Section 37 the GI provision instead. That would surely make Comelec compliant with RA 9369. However, if inaction of Comelec would continue, then we’ll have no IRR come the 2019 midterm elections.
AES Watch is now calling for the support of the 17th Congress to compel Comelec to draft the IRR within ninety (90) days. Else, it would be best for the new Congress to scrap the AES law and revert back to conventional public counting as Comelec could not successfully implement the AES. Even advanced countries like Germany, didn’t find it shameful to go back to manual elections as they had experienced that AES was vulnerable to cheating.
Let’s face it, our democratic form of government is not yet ready to embrace new election technologies, especially the Hocus-PCOS system!